What was the outcome of Tenancy Tribunal case 4689731?

The tribunal order states: Point Properties Management Limited as Agent for Mike Boyle must pay

How much money was awarded in case 4689731?

Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4689731?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4689731?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9864193-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4689731?

The tribunal order states: Point Properties Management Limited as Agent for Mike Boyle must pay

How much money was awarded in case 4689731?

Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4689731?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4689731?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9864193-Tenancy_Tribunal_Order.pdf.

37 Canberra Avenue, Lynfield, Auckland 1042 Tenancy Tribunal Case 4689731 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4689731 — net $1,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages s60AA	$1,500.00	Exemplary damages s60AA
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,520.44
Total payable by Landlord to Tenant	$1,520.44

Order

Point Properties Management Limited as Agent for Mike Boyle must pay Clayton James Downes $1,520.44 immediately, made up as follows: DescriptionTenant Exemplary damages s60AA $1,500.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$1,520.44

Reasons

Both parties attended the hearing.
The tenant seeks compensation and/or exemplary damages for unlawful termination of the tenancy.
The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order those exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal is able to consider whether exemplary damages can be ordered under section 109, which relates to unlawful acts. The maximum levels of exemplary damages are set out in Schedule 1A of the Act.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The tenant claims that the landlord has breached their obligations under section 60AA.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
The tenancy commenced on 24 April 2015 and terminated on 29 July 2022 after the tenant was given notice pursuant to s51(2)(f) of the RTA. That section allows termination of tenancy on 90 days’ notice if a landlord intend to undertake “extensive alterations, refurbishment, repairs or redevelopment” of the premises and it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken. Work must begin, or at least material steps be taken, within 90 days of the termination of the tenancy.
Following the termination of the tenancy, the landlord replaced the shower liner and tray, repainted and washed the exterior of the premises and cleared gutters. While the tenant disputes the work was done to the shower, there is an invoice indicating that it was, and I accept that at face value.
The premises was re-tenanted on 1 December 2022, for the same rent the tenant was paying.
Following the re-tenanting of the premises, the roof was replaced. It was the landlord’s position that this was always intended as part of the renovation, but the landlord’s contractor was unable to commencing roofing work until after December 2022.
It is accepted that the repairs to the shower were necessary, and correspondence provided to me shows that this was contemplated during the tenancy.
The question is whether, at the time the notice was given, the landlord intended to undertake “extensive” work on the property, and whether that work was such that it was impracticable for the tenant to remain living in the property while it was carried out.
As I outlined to the landlord, the work actually undertaken does not appear to be reach the level of extensive work. Further, there is no evidence before me to demonstrate why the shower liner and tray could not be replaced while the tenant remained in the premises. I do not accept that exterior washing, painting and gutter clearing required the tenant to vacate.
The only possible work that might require the premises to be vacated was the replacement of the roof. However, that argument promptly fails as the roof replacement work was completed while the new tenants were living in the premises.
The landlord endeavoured to argue that the tenancy was terminated so that the landlord could assess what work was required. That is not sufficient for the termination of the tenancy. Such assessments and quotations can, and should, be undertaken while the tenancy is live, as they are the assessments which give rise the landlord’s belief that the work is such that termination is required.
The landlord submitted that this was not possible as the tenant denied access to contractors. The email provided in support of this submission does not refer to access for assessment of the property, but rather relates to access to repair the shower. The tenant accepted that access was denied on one occasion as his partner was suffering from Covid 19. That is an acceptable reason for access to be denied.
There is no evidence of efforts made to gain access for the purpose of assessing the property. There is no evidence that access was denied, and there were no applications to the Tribunal for orders that access be allowed for this purpose.
For these reasons, I am satisfied that the landlord did not have adequate grounds to issue the notice to terminate the tenancy.
Taking the section 109 considerations into account, I conclude as follows:
The effect the landlord’s unlawful act was the termination of a longstanding tenancy. The tenant had resided at the premises for some 7 years at the point of termination, he had sought and obtained, compensation for failures on the landlord’s part to maintain the property. His tenancy was then terminated, leaving him with the anxiety of obtaining new accommodation.
I consider the landlord must have acted intentionally in giving notice to terminate the tenancy without sufficient grounds. As indicated, there is a noticeable absence of evidence of efforts made to assess the required repairs to the premises and to assess whether it was reasonably practicable for those repairs to be carried out while the tenant remained in the premises. That is then borne out by the work actually done while the premises was vacant.
Further, I consider there is a clear public interest in landlord’s not terminating tenancies without property cause. Parliament specifically removed ability for landlords to terminate tenancies without reason and made doing so without proper reason an unlawful act.
I consider that an award of exemplary damages is appropriate in this case, and I award $1,500.00.
As the tenant has wholly succeeded with his claim, I must order reimbursement of the filing fee.
The tenant’s application initially indicated that he sought name suppression. I enquired about this at the end of the hearing, and the tenant confirmed that he no longer sought suppression. Accordingly, no order for suppression is made.

Claims and awards in Tenancy Tribunal application 4689731 — net $1,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages s60AA	$1,500.00	Exemplary damages s60AA
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,520.44
Total payable by Landlord to Tenant	$1,520.44

Order

Point Properties Management Limited as Agent for Mike Boyle must pay Clayton James Downes $1,520.44 immediately, made up as follows: DescriptionTenant Exemplary damages s60AA $1,500.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$1,520.44

Reasons

Both parties attended the hearing.
The tenant seeks compensation and/or exemplary damages for unlawful termination of the tenancy.
The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order those exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal is able to consider whether exemplary damages can be ordered under section 109, which relates to unlawful acts. The maximum levels of exemplary damages are set out in Schedule 1A of the Act.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The tenant claims that the landlord has breached their obligations under section 60AA.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
The tenancy commenced on 24 April 2015 and terminated on 29 July 2022 after the tenant was given notice pursuant to s51(2)(f) of the RTA. That section allows termination of tenancy on 90 days’ notice if a landlord intend to undertake “extensive alterations, refurbishment, repairs or redevelopment” of the premises and it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken. Work must begin, or at least material steps be taken, within 90 days of the termination of the tenancy.
Following the termination of the tenancy, the landlord replaced the shower liner and tray, repainted and washed the exterior of the premises and cleared gutters. While the tenant disputes the work was done to the shower, there is an invoice indicating that it was, and I accept that at face value.
The premises was re-tenanted on 1 December 2022, for the same rent the tenant was paying.
Following the re-tenanting of the premises, the roof was replaced. It was the landlord’s position that this was always intended as part of the renovation, but the landlord’s contractor was unable to commencing roofing work until after December 2022.
It is accepted that the repairs to the shower were necessary, and correspondence provided to me shows that this was contemplated during the tenancy.
The question is whether, at the time the notice was given, the landlord intended to undertake “extensive” work on the property, and whether that work was such that it was impracticable for the tenant to remain living in the property while it was carried out.
As I outlined to the landlord, the work actually undertaken does not appear to be reach the level of extensive work. Further, there is no evidence before me to demonstrate why the shower liner and tray could not be replaced while the tenant remained in the premises. I do not accept that exterior washing, painting and gutter clearing required the tenant to vacate.
The only possible work that might require the premises to be vacated was the replacement of the roof. However, that argument promptly fails as the roof replacement work was completed while the new tenants were living in the premises.
The landlord endeavoured to argue that the tenancy was terminated so that the landlord could assess what work was required. That is not sufficient for the termination of the tenancy. Such assessments and quotations can, and should, be undertaken while the tenancy is live, as they are the assessments which give rise the landlord’s belief that the work is such that termination is required.
The landlord submitted that this was not possible as the tenant denied access to contractors. The email provided in support of this submission does not refer to access for assessment of the property, but rather relates to access to repair the shower. The tenant accepted that access was denied on one occasion as his partner was suffering from Covid 19. That is an acceptable reason for access to be denied.
There is no evidence of efforts made to gain access for the purpose of assessing the property. There is no evidence that access was denied, and there were no applications to the Tribunal for orders that access be allowed for this purpose.
For these reasons, I am satisfied that the landlord did not have adequate grounds to issue the notice to terminate the tenancy.
Taking the section 109 considerations into account, I conclude as follows:
The effect the landlord’s unlawful act was the termination of a longstanding tenancy. The tenant had resided at the premises for some 7 years at the point of termination, he had sought and obtained, compensation for failures on the landlord’s part to maintain the property. His tenancy was then terminated, leaving him with the anxiety of obtaining new accommodation.
I consider the landlord must have acted intentionally in giving notice to terminate the tenancy without sufficient grounds. As indicated, there is a noticeable absence of evidence of efforts made to assess the required repairs to the premises and to assess whether it was reasonably practicable for those repairs to be carried out while the tenant remained in the premises. That is then borne out by the work actually done while the premises was vacant.
Further, I consider there is a clear public interest in landlord’s not terminating tenancies without property cause. Parliament specifically removed ability for landlords to terminate tenancies without reason and made doing so without proper reason an unlawful act.
I consider that an award of exemplary damages is appropriate in this case, and I award $1,500.00.
As the tenant has wholly succeeded with his claim, I must order reimbursement of the filing fee.
The tenant’s application initially indicated that he sought name suppression. I enquired about this at the end of the hearing, and the tenant confirmed that he no longer sought suppression. Accordingly, no order for suppression is made.

Tenancy Tribunal case 4689731 — Exemplary damages at 37 Canberra Avenue, Lynfield, Auckland 1042

At a glance

Tenancy Tribunal case 4689731 — Exemplary damages at 37 Canberra Avenue, Lynfield, Auckland 1042

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions